People v. Frey

• Decision Date: 09 March 1989
• Docket Number: No. H004432,H004432
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. James FREY, Defendant and Appellant.

Page 810

256 Cal.Rptr. 810

209 Cal.App.3d 139

The PEOPLE, Plaintiff and Respondent, v. James FREY, Defendant and Appellant.

No. H004432.

Court of Appeal, Sixth District, California.

March 9, 1989.

John K. Van de Kamp, Steve White, John H. Sugiyama, Stan M. Helfman, David Rose, Office of the Atty. Gen., San Francisco, for plaintiff and respondent, the People

Frank Offen (Appointment by the Court of Appeal), Oakland, for defendant and appellant, James Frey.

ELIA, Associate Justice.

Appellant James Frey was convicted of seven felony counts, sentenced to a term in state prison and ordered to pay restitution. On appeal, he contends that the restitution fine imposed violated the requirements of Government Code section 13967(c). We agree.

FACTUAL AND PROCEDURAL BACKGROUND

On March 4, 1988, appellant pled guilty to seven felony counts including three counts of grand theft. (Pen.Code §§ 484/487, subd. 1.) The three counts of grand theft involved vehicles stolen from three different persons.

Appellant was sentenced to a term of five years and eight months in state prison. In addition, the trial court ordered "There is a restitution fine in lieu of--strike that. Restitution fine in lieu of the restitution fine in each count in an amount not to exceed ten thousand dollars." On the Abstract of Judgment-Commitment form this fine was transcribed as "Restitution not to exceed $10,000.00 as to each xxxx/victim (sic)."

DISCUSSION

Appellant's first argument is that the trial court's restitution order violated Government Code section 13967(c) because it did not specify the exact amount of the fine and did not identify the losses to which the fine pertained.

Government Code section 13967(c) provides in pertinent part: "In cases in which a victim has suffered economic loss as a result of the defendant's criminal conduct, and the defendant is denied probation, in lieu of imposing all or a portion of the restitution fine, the court shall order restitution to be paid to the victim. Notwithstanding subdivision (a), restitution shall be imposed in the amount of the losses, but not to exceed ten thousand dollars ($10,000). A restitution order imposed pursuant to this subdivision shall identify the losses to which it pertains, and shall be enforceable as a civil judgment." As demonstrated above, Government Code section 13967(c) expressly requires that the court identify the losses for which the restitution is being granted. It specifically states that: "A restitution order ... shall identify the losses to which it pertains and shall be enforceable as a civil judgment." (Emphasis added.) In addition, the statute requires that restitution "be imposed in the amount of the losses." It is settled that section 13967(c) must be interpreted according to the usual and ordinary import of its language, with significance being given to every word and phrase. (Palos Verdes Faculty Assn. v. Palos Verdes Peninsula Unified Sch. Dist. (1978) 21 Cal.3d 650, 658-659, 147 Cal.Rptr. 359, 580 P.2d 1155.) Accordingly, we believe the plain language of the statute demonstrates that the losses and amount of the fine must be identified and stated on the record.

In this case, the trial court simply stated that the restitution fine was not to exceed $10,000 but did not specify the exact amount of the fine or identify the victim's losses. Indeed, the discrepancy between the court's order and the statement on the Abstract of Judgment form demonstrates that not only was the amount of the fine and victim's losses unclear, but the question of whether the fine was per count or per victim was also unresolved. As a consequence, we conclude that the restitution order was wholly ambiguous and therefore violated the requirements of section 13967(c).

Appellant's second argument is that the restitution order violated the $10,000 limit imposed by Government Code section 13967(c) because the court imposed a $10,000 fine for each victim and/or each count.

Initially, it is important to note that it is not entirely clear whether the court imposed a fine of $10,000 per victim or $10,000 per count. While the trial court's order could be interpreted to impose a fine of $10,000 per count, the Abstract of Judgment-Commitment form imposes a fine of $10,000 per victim. In any event, we conclude that either type of fine, $10,000 per victim or $10,000 per count, was improper.

Section 13967(c) does not specifically state whether the $10,000 limit is to be applied per victim, per count, or per defendant. However, we believe that the close scrutiny of the statute and case law interpreting it demonstrates that the maximum fine which may be imposed is $10,000 regardless of the number of victims involved or counts charged.

In People v. Downing (1985) 174 Cal.App.3d 667, 220 Cal.Rptr. 225, the court interpreted section 13967(a) ¹ and concluded that "the restitution fine in felonies is limited to $10,000 regardless of the number of felony offenses and victims involved." (Id. at p. 672, 220 Cal.Rptr. 225.) Similarly, in People v. Vega-Hernandez (1986) 179 Cal.App.3d 1084, 225 Cal.Rptr. 209, the court acknowledged that section 13967(a) allowed a maximum fine of $10,000.00. (Id. at p. 1091, 225 Cal.Rptr. 209.) Although 13967(c) had not been enacted when Downing and Vega-Hernandez were decided, we do not believe that the Legislature, by enacting subsection (c), intended to change the ten thousand dollar limit. The fact that subsection (c) states that it should be applied "in lieu of imposing all or a portion of the restitution fine" suggests that the $10,000 limit set forth in subsection (a) should be equally applicable to subsection (c). It would be incongruous for restitution to the victim to be imposed "in lieu of ... all or a portion of the restitution fine" if the maximum fine was not the same under each subsection.

Respondent argues that the words "a victim" and "the victim" in the singular within sub...